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Are Postnuptial Agreements Binding in Wisconsin?

Before a marriage, a couple may agree to a prenuptial agreement, which allows assets and debts to be distributed a certain way in the event of a divorce. But what if the couple is already married? Can they still get a prenuptial agreement?

They can get the same type of legal document in a postnuptial agreement. A postnuptial agreement is created when a couple is already married. It does include the same elements, though.

Postnuptial agreements are not as common but they are just as powerful in the eyes of the law. Once reserved for the rich, these legal documents are growing in popularity. People of all financial backgrounds are considering them before marriage to protect their assets, which may include homes, vehicles, bank accounts, stocks, and other items of value. Postnups offer peace of mind when something unpredictable happens, such as infidelity, addiction, or substance abuse by one spouse.

So, what happens in a divorce? Are postnuptial agreements legally binding? Yes, they are, but to a certain degree. This will depend on what is fair at the time of the divorce.

What Wisconsin Law Says

Wisconsin is unique in that it is a community property state (there are just nine in the country). This means that in the event of a divorce, all assets and debts are split equally, regardless of each party’s contributions to the marriage.

To circumvent these laws, a couple may agree to a postnuptial agreement so they divide property based on their preferences. The Wisconsin courts will usually enforce a postnuptial agreement, but it depends on the age of the agreement. An agreement executed 20 years ago may no longer be valid. That is because nothing is certain. Unforeseeable circumstances may arise.

What is fair when the postnuptial agreement was created may not be fair at the time of a divorce, and that is the main thing that judges are looking at — fairness. They will not enforce an agreement that looks to be incredibly one-sided.

Judges will also look for full disclosure. Are both parties aware of the other’s assets and debts? This is important. Also, was the postnup signed voluntarily? Was one party forced or coerced by the other? There should be no duress involved.

For best results, have your postnuptial agreement created by a law firm that specializes in family law. They know the laws that apply and will work to ensure that your agreement is valid and enforceable.

Contact Us Today

Postnuptial agreements are typically enforceable in Wisconsin, but judges have the final say. It is easy for someone to take advantage of the other in a relationship, so they look for fairness.

Postnuptial agreements can work well for many marriages. To learn more about postnuptial agreements, discuss your situation with the team at Moen Sheehan Meyer, Ltd. We have been serving the area for more than 150 years. Call our office at (608) 784-8310 or email us.

Published January 31, 2022
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